The Unfair Dismissals Acts 1977-2001 are intended to provide employees with legal protection from being unfairly dismissed from their jobs and to establish an adjudication system to provide redress for any employee who is found to be unfairly dismissed.

The failure to use fair procedures during the disciplinary investigation is an issue which is regularly presented in cases at the WRC in relation to claims for Unfair Dismissal. Therefore, it is essential that employers implement and adhere to a rounded disciplinary procedure and use separation of process for all disciplinary investigations.

The Disciplinary Procedure is designed to provide an objective and consistent process to address issues of misconduct, capability, competence or qualifications, or failure to meet company standards relating to behaviour or performance.

In all cases of discipline, the employee will have the right to a fair hearing. The matter(s) will be fully and fairly investigated; you will be informed of the reason for the discipline and have full right to reply. The Company will always strive to be balanced, not to pre-judge and to apply discipline in a consistent and honest manner.

It is very important to ensure that you not only have the necessary procedure in place but that it has been issued to and signed off by all employees in order to ensure you are in a position to correctly manage disciplinary issues in the workplace.

A disciplinary and grievance procedure should make it easier for you as the employer to manage the situation as it ensures that the process is standardised, employees are aware of the process and that they know what to expect when involved in a disciplinary investigation.

Fair Procedures

Section 6(7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:

(A)   The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B)   the extent, if any, of the compliance or failure in complying with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

The employers own disciplinary procedures will first be looked at as it may be more extensive than the procedures outlined in the Code of Practice.

The Rules of Natural Justice

The procedure you implement should follow the rules of natural justice – follow the procedures!

Employers who commence disciplinary proceedings against their employees must ensure that they follow the rules of natural justice.

The rules of natural justice require:

• An employee is made fully aware of any formal allegation made against them
• They are afforded the opportunity to reply to any formal allegation made against them
• They are afforded the right to representation throughout the disciplinary process
• They receive the right to a full and objective investigation of the allegation
• They receive the right of appeal

The Right to Receive a Fair and Impartial Investigation

It is our advice that prior to commencement of the disciplinary process the Managers of each stage are put in place. This is helpful in establishing order to the disciplinary process prior to communicating with the employee.

For example, in some cases this may be the direct line manager acting as the Investigation Manager; Department Manager acting as the Outcome Manager; the Managing Director acting as the Appeal Manager.

Notetakers can accompany the Managers at each stage. There is no onus on the employee to have a separate note taker at each stage. The reasoning behind this is that the note taker is not involved in the meeting and is merely in attendance to provide a note-taking service.

The separation of process extends to the correspondence which is issued through the disciplinary process also. The invitation to the disciplinary investigation meeting will be drafted by the Investigation Manager. The Investigation Manager may also be involved in the suspension of the employee is cases of suspected gross misconduct having followed the correct process in the event suspension being considered. This Manager will interview witnesses, finalise the investigation and will draft a summary report to be issued to both the employee and the Outcome Manager. The invitation to the disciplinary outcome meeting, where the employee has an opportunity to respond to the summary report and include any other comments, will be drafted by the Outcome Manager. The sanction will be issued by the Outcome Manager and will include the process of appeal and whom the employee can address their appeal to. The appeal meeting and the appeal decision will be attended by the Appeal Manager.

It is important to note that in smaller organisations the separation of process must still be adhered to. Case law has indicated this the separation of process is key to ensuring fair procedures within any organisations and no leeway is given to smaller organisations for failing to comply with this. In these circumstances the smaller organisation is advised to ensure that the Disciplinary Policy includes a reference regarding the Company reserving the right to avail of the services of an experienced third party in conducting all or part of the disciplinary process.

Employers invariably lose Unfair Dismissal cases because fair procedures and the rules of natural justice were not adhered to.  Based on the experience of our team, this happens because advice from experienced professionals was not obtained before the dismissal procedure was put in place and, in a worst-case scenario, before the dismissal took effect.

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Caroline McEnery is speaking at Legal-Island's Annual Review of Employment Law 2017 conferences in November. Caroline's session is A Practitioner’s Guide to WRC Hearings & Inspections.

[SOLD OUT] 2nd November at the Red Cow Moran Hotel, Dublin

[SOLD OUT] 15th November at the Crowne Plaza Hotel, Northwood, Dublin

30th November at the Talbot Hotel, Stillorgan, Dublin [limited places remaining]